ALUKKAS JEWELLERY KANNUR V. DEPUTY COMMISSIONER OF INCOME TAX

WP(C)/20249/2020

AI Insights

The case involves M/s Alukkas Jewellery, represented by its managing partner A.V. Francis, who approached the Kerala High Court challenging a stay order (Ext.P10) issued under the Income Tax Act. This stay order was related to an appeal against an assessment order. The petitioner argued that since the appeal was already scheduled for a hearing and written submissions had been submitted, there was no need to impose a pre-deposit condition for the stay of recovery. The court agreed with the petitioner's argument, noting that the appeal was already set for a final hearing, and thus, a pre-deposit should not be required.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 758200 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 29-09-2020
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: S RAJ; C T SUJA
• Keywords: Appeal; Assessment Order; Deposit; Income Tax; Stay order
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942 WP(C).No.20249 OF 2020(E) PETITIONER/S: M/s ALUKKAS JEWELLERY KANNUR ADMN. OFFICE, ALUKKAS COMPLEX, RAMOHAM ROAD, KOZHIKODE- 673 004, REPRESENTED BY ITS MANAGING PARTNER A.V. FRANCIS. BY ADVS. SRI.S.ARUN RAJ SMT.C.T.SUJA RESPONDENT/S: 1 DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-1, KANNUR, O/O. ADDL.COMMISSIONER OF INCOME TAX, KONNOTHUMCHAL, CHOVVA P.O, KANNUR-670 006 2 COMMISSIONER OF INCOME TAX (APPEALS) AAYAKAR BHAVAN, MANANCHIRA, CALICUT-673 001 OTHER PRESENT: SC: CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.20249 OF 2020(E) 2 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P10 stay order passed against him under the Income Tax Act, in an appeal preferred by him against an order of assessment. In the writ petition, it is the case of the petitioner that while the appeal and stay petition were pending consideration before the Appellate Authority namely the 2nd respondent, the 2nd respondent had issued Ext.P8 notice calling upon the petitioner to submit the written submission for the purposes of deciding the appeal itself. While the petitioner had complied with the said notice, and had submitted the written submission for the purposes of hearing the appeal, he was served with Ext.P10 order in the stay application asking him to deposit some amounts, pending consideration of the appeal. In the writ petition, the petitioner contends that in as much the appeal itself was posted for hearing and the written submissions in connection with the hearing of the appeal have already been furnished, the appeal itself can be disposed and the petitioner need not be put to the difficulty of having to deposit amounts pending disposal of the appeal. 2.I have heard the learned counsel appearing for the petitioner and also the learned Standing Counsel appearing for the respondents. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that in as much as Ext.P8 notice was issued to the petitioner calling him to appear for the final hearing of the appeal itself, there is no requirement at this stage to insist on a WP(C).No.20249 OF 2020(E) 3 pre-deposit as a condition for grant of stay of recovery, pending disposal of the appeal. Accordingly. I quash Exts.P5 and P10 orders passed in connection with the deposit of amounts pending disposal of the appeal and direct the Appellate Authority namely, the 2nd respondent, to consider and pass orders on Ext. P2 appeal within an outer time limit of six month from the date of receipt of a copy of this judgment, after hearing the petitioner. The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 2nd respondent, for further action. I also make it clear that the pending disposal of the appeal, the recovery steps for recovery of amounts confirmed against the petitioner by the order impugned in the appeal shall be kept in abeyance. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE SJ WP(C).No.20249 OF 2020(E) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 30.12.2019 PASSED BY THE 1ST RESPONDENT AND THE DEMAND NOTICE ISSUED FOR THE AY 217-18 EXHIBIT P2 TRUE COPY OF THE APPEAL MEMORANDUM DATED 21.1.2020 FILED BY THE PETITIONER FIRM BEFORE THE 2ND RESPONDENT FOR THE AY 2017- 18 EXHIBIT P3 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER FIRM BEFORE THE ASSESSING OFFICER, 1ST RESPONDENT FOR THE AY 2017-18 EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 14.2.2020 IN W.P(C) NO.4318 OF 2020 PASSED BY THIS HONOURABLE COURT EXHIBIT P5 TRUE COPY OF THE ORDER DATED 4.3.2020 PASSED BY THE 1ST RESPONDENT ON EXHIBIT P3 APPLICATION EXHIBIT P6 TRUE COPY OF THE STAY APPLICATION ALONG WITH LETTER DATED 9.3.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE AY 2017-18 EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 19.2.2020 ISSUED BY THE 2ND RESPONDENT ON THE STAY APPLICATION EXHIBIT P7A TRUE COPY OF THE WRITTEN SUBMISSION DATED 24.6.2020 E-FILED BY THE PETITIONER ON STAY PETITION BEFORE THE 2ND RESPONDENT FOR THE AY 2017-18 EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 17.8.2020 ISSUED BY THE 2ND RESPONDENT ASKING FOR E- FILING THE WRITTEN SUBMISSION FOR DISPOSAL OF EXHIBIT P2 APPEAL EXHIBIT P9 TRUE COPY OF THE WRITTEN SUBMISSIONS DATED 26.08.2020 IN THE APPEAL MEMORANDDUM FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WP(C).No.20249 OF 2020(E) 5 FOR THE AY 2017-18 EXHIBIT P10 TRUE COPY OF THE ORDER DATED 8.9.2020 PASSED BY THE 2ND RESPONDENT ON EXHIBIT P6 STAY PETITION FOR THE AY 2017-18 "